Durst’s Mumbled Confession

Almost every lawyer and lawprof, upon learning of Robert Durst’s confession caught on video and microphone and aired in the finale of HBO’s “The Jinx,” thought the same thing:  He’s toast. Staring into a bathroom mirror, he muttered:

“What the hell did I do? Killed them all, of course.”

Then came the questions. But isn’t it hearsay? What about Miranda? How can it be authenticated? What about chain of custody?  Was it an illegal wiretap?  Lawyers shook their heads.

No, a statement by a criminal defendant is never hearsay, it’s a party statement, and in this instance a statement against penal interest, but it doesn’t matter.

No, it was recorded by HBO, and Miranda only applies to custodial interrogation by the state.

Authentication is easy (Q: Is that a fair and accurate depiction? A: Yes.), and chain of custody goes to weight, not admissibility. As to the wiretap, Durst was voluntarily wired for sound, having chosen to participate in the production, and knew he was wearing the microphone. That’s pretty good consent in a two-party state like California.

If there were any other questions, Jeff Bellin covered them at Evidence Law Prof, calling claims that the Durst statements were inadmissible a “bizarre myth.”  So why bother dealing with it if this is all so easy-peasy and everybody agrees?

Harvard law professor Noah Feldman leaped into the picture at Bloomberg View with an outlandish proposition following a truly clueless analysis of the rules of evidence:  the confession is inadmissible.

So far it sounds as if the confession might make it in — but here comes the twist. Even if all these legal principles for admissibility are satisfied, the trial judge still must decide whether the evidence to be admitted is more probative than prejudicial. In other words, the judge will ask whether the jury would be more likely to glean useful information from the statement that would help prove guilt or innocence, or more likely to form an irrational prejudice the basis of the evidence.

In this case, an intelligent judge would certainly conclude that Durst’s statement would create irreversible prejudice in the mind of the jury — without a reliable basis for proving the truth.

An intelligent judge?  So if the judge who actually decides this doesn’t bend to Feldman’s theory, he must be a dumbass?  But more to the point, Section 352 of the California Code of Evidence provides:

352. The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

The rule is somewhat more stringent than Feldman suggests, where only a “substantial danger of undue prejudice” would suffice.  It’s not an even trade, probative versus prejudicial.

More significantly, the word “undue” is in there.  That’s to distinguish “due prejudice,” which is the sort of prejudice that comes from introducing a confession.  A confession is really, really, really prejudicial, but the prejudice isn’t undue in the least. It’s precisely the sort of prejudice that is fairly admitted, because it’s a friggin’ confession. It’s supposed to really screw the defendant.

Durst’s statement takes the classic form of a soliloquy. And soliloquies are by their very nature ambiguous — because there’s no actual addressee. We don’t need to communicate with ourselves in spoken words, because we already know what we know. When we talk out loud to ourselves, we’re doing something different: exploring our ideas, fantasies, doubts, fears.

This dramatic description of Durst’s delivering his statement is, of course, interesting and, perhaps, even moving.  It’s an excellent argument to be made to the jury to disregard the confession, that he didn’t mean it, that it was nothing more than the fantasy ramblings of a guy in front of a bathroom mirror.

But it has no bearing on admissibility. None whatsoever. It might bear upon weight and sufficiency, which means that the jury has the option not to believe it to be a true statement, or that it’s not a real confession such that the jury should find it sufficient to prove that he did what he said he did.

But that’s something to argue to the jury after the statement is admitted into evidence.  It is not an argument to keep it out.  The determination of the statement’s value as a confession is a jury question, unless it is so overwhelmingly clear that it could not be true that to admit it would confuse the jury or that it was unreliable as a matter of law such that the jury should be precluded from deciding it was, in fact, an actual confession.

That’s not the case here. Feldman’s soliloquy argument might be entirely different if the original video shows Durst running through the same question with different answers as if trying them on for size:

“What the hell did I do? Killed them all, of course.”

“What the hell did I do? Nothing, of course. There was nothing to do.”

“What the hell did I do? Felt very sad, of course.”

There is nothing to suggest that this is the case as yet, making this wild speculation offered only as an example. If this doesn’t turn out to be the case, which is overwhelmingly probable, the argument’s persuasiveness is, well, limited.

If this did happen, however, it would show how taking one line out of context would serve to confuse the jury, be substantially non-probative as its context undermined reliability, and that its introduction would be unduly prejudicial.  But then, there is nothing to suggest this is the case. Nothing at all.

While Feldman’s argument raises an interesting take on the confession for summation, it’s simply not an argument against admissibility.  It’s not that lawyers wouldn’t give it a try to keep the confession out, but that nobody with any trial experience would expect an “intelligent judge” to rule the confession inadmissible on this basis.  It’s coming in, prejudice and all.

17 thoughts on “Durst’s Mumbled Confession

  1. Eric Mayer

    Buoyed by the press this case is receiving, I’m starting a new nonprofit–Attorneys Against Prejudicial Evidence. AAPE.

      1. Patrick Maupin

        I guess I was confused. I made out the check to AAAPE, thinking it was Asshole Attorneys Against Practically Everything. Just tear it up and I’ll send another.

  2. RKTlaw

    A trial judge is going to keep out a Defendant’s admission on 403 grounds? In a murder case? Has Prof. Feldman ever actually, you know, tried a case, or even seen one tried?

  3. Bartleby the Scrivener

    Oh dear God. Really?

    So what *IS* admissible under this idiot’s understanding of the law?

  4. Turk

    It’s tangential to the post, but watching the film makers prep for their cross-exam that led to the confession was great.

  5. ShelbyC

    Does it matter that we have no idea what he was talking about? For all we know, he could have been talking about the hornets nest in the bush in his yard.

    1. Dan

      And he can argue to the jury that just after completing an interview about evidence that suggests he’s a murderer that he was mumbling about killing hornets in his yard. Like Scott said, that doesn’t go to admissibility.

  6. Dan

    I watched the show and personally, I thought there were other aspects of his bathroom mumbles that were more significant than the “killed them all” line, specifically, it seems that before he gets to that line, he’s assessing his performance in the interview and how he handled being confronted by incriminating evidence and his assessment seems to be that he was caught, that the interviewer was right and he, Durst, was wrong.

    Anyway, thank you for this post. While I shouldn’t be bothered by the musings of lay people, I have this defect where my blood pressure rises every time I hear someone say wait, don’t you have a reasonable expectation of privacy in the bathroom?

  7. Henry Berry

    Robert Durst’s statement is clearly not a confession. Who was he confessing anything to? Himself? I find this line of reasoning absurd. A clearly mentally unstable and probably delusional individual was muttering to himself in private. (This doesn’t mean he didn’t kill one or more persons.) SHG comes closest to a proper characterization of the statement with his adjective “mumbled” in the title of this post. But then SHG immediately goes into speculative territory by following this with “confession” — “mumbled confession.” This seems a patent anomaly to me, like “military intelligence” or “customer service.”

    Even “soliloquy” is a stretch, a term brought in by ones wanting to give Durst’s muttering a Shakespearean intonation with an allusion to Hamlet’s soliloquy beginning “To be or not to be.” “DId I kill or did I not kill,” so Durst is portrayed as musing.

    I categorize Durst’s question and answer to himself as the mutterings of a borderline madman. He’s obviously shrewd and aware of his surroundings and situation, though oddly, or he never would have agreed to cooperate in the series the “Jinx.” The more attention on him — even if he was totally innocence and had no evident connection with the murdered individuals — the worse he would inevitably look.

  8. William Doriss

    First we had the Dersch Factor. Now we have the Durst Factor.
    What about “corroborating evidence”? Huh, huh. Who cares about
    admissibility or inadmissibility? The game is rigged. It is a charade and
    monstrous Kabuki dance, as previously posted by me. This is getting
    very complicated, and boring. Of course we know “he did it”, just like we knew
    OJ did it. So what? We civilians who fail to read the law reviews and SC decisions
    did not just fall of the turnip wagon. The so-called justice system does not give a hoot.
    It merely wants to pin the tail on the donkey, collect pay checks bi-monthly
    and move on to the next judicial abortion.
    Durst is a wily coyote and trickster par excellence. We predict, with his resources, he will make
    the judicial system look stewpid once again. Which they are in reality.
    Incidentally, how did Roberts achieve CJ anyway? This is a “common man” who
    disfavors “the common man”, or my name is not,… It took me a long time to figure
    out who RBG was. Please do not do that again!

  9. bacchys

    To be kind to Prof. Feldman, though I have no idea if that’s deserved or not, the “intelligent judge” comment might be of a kind with the old “reasonable people can disagree.” IOW, an intelligent judge *could* come to the one conclusion, or one might come to another.

    I haven’t seen the documentary yet so I have no personal way of judging, but reading his words had me wondering if his solo Q&A wasn’t akin to the scene in “My Cousin Vinny” where Karate Kid says “I shot the clerk? I shot the clerk?” and it’s later relayed as a confession.

    1. SHG Post author

      On the “intelligent judge,” if he wants to say reasonable judges could differ, then he should have said that. But he emphasized the distinction between what an “intelligent” judge would do versus any other judge, and his answer was that an “intelligent” judge would agree with him. That, he can’t get away with.

      As has been noted, that’s an argument to be made about the weight and sufficiency of the statement to the jury: It doesn’t mean what it appears to mean. It’s just not an argument against admissibility.

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